State v. Heard

• Decision Date: 01 April 1963
• Docket Number: No. 42547,42547
• Citation: 151 So.2d 417,246 Miss. 774
• Parties: STATE of Mississippi v. Zack T. HEARD.
• Court: Mississippi Supreme Court

Page 417

151 So.2d 417

246 Miss. 774

STATE of Mississippi v. Zack T. HEARD.

No. 42547.

Supreme Court of Mississippi.

April 1, 1963.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellant.

William Joel Blass, Wiggins, for appellee.

ETHRIDGE, Justice.

The question is whether a nonresident of Mississippi, who pays the owner for the privilege, may fish in a privately owned, land-locked lake in this state without first obtaining the fishing license required of nonresidents by Mississippi Code 1942, Rec., section 5904; Miss.Laws 1956, ch. 151.

Zack T. Heard, a resident of New Orleans, Louisiana, was convicted in a Justice of Peace Court of fishing without a fishing license. He appealed to the Circuit Court of Stone County, which considered the case on a stipulation of facts and without a jury. That court, holding defendant was not required to have a license, found him not guilty. From that judgment, the state has appealed on the question of law decided adversely to it. This may be done under Code section 1153, under which this court may decide the question of law presented, but cannot change the judgment of acquittal.

Red Gap Lake, in Stone County, has an area of 120 acres. It is entirely land-locked, and is located on lands belonging to James N. Harsh, who constructed it in 1951. He erected a dam across the southeast end between two hills, where previously there was only dry land. No stream runs into the lake, and its waters are composed entirely of those falling on surrounding lands, also owned by Harsh. He stocked the lake with fish, and has fertilized and maintained it at his expense. The only outlet is a spillway on one end of the dam, approximately four feet high, which makes the lake inaccessible to any fish outside of the lake. The spillway overflows during unusually heavy rains, three or four times annually, and it would be possible for some fish to escape from the lake over the spillway, but it is not possible for fish to enter the lake.

Fish escaping over the spillway would enter a small branch traversing three-quarters of a mile on Harsh's land before entering a small stream known as Little Biloxi. All fish in the lake have been raised from stock placed there by Harsh, although the sources from which Harsh obtained the fish were not shown. The public can not enter the lake without trespassing upon his land, except by his invitation. For several years Harsh has sold fishing rights to individuals coming on his land at his invitation, charging $1 per person, and making additional charges for boats, bait and tackle. The annual cost to Harsh of maintaining the lake is approximately $5,000. Since it was constructed, no fish have been taken from it of a species different from those placed in it by him.

On Saturday afternoon, July 7, 1962 Heard, from New Orleans, was fishing in the lake without a license, when the sheriff arrested him on the charge of fishing without a license in violation of the statute. Heard was using both natural and artificial bait, and had paid Harsh $1 for the privilege.

I.

The applicable statute is Mississippi Code 1942, Rec., section 5904:

'A non-resident fishing license shall be required of all persons who are non-residents of the state of Mississippi within the meaning of this act and for such license there shall be paid a fee of six dollars ($6.00) with an additional fee of twenty-five cents (25cents) to the officer issuing same; provided, however, no fishing license shall be required of any non-resident minor under fourteen years of age.' Miss.Laws 1956, ch. 151.

Code section 5876 provides that 'no license shall be required of persons to * * * fish * * * on lands in which the record title is vested in such person.' This exemption from license would apply to Harsh, the owner of the lake, but not to Heard.

Code section 5906, as amended by Mississippi Laws 1958, ch. 175, pertains to fishing licenses for residents of this state. It is not pertinent in this case. Code section 5857 makes any violation or attempt to violate any of the provisions of the game and fish laws a misdemeanor.

Section 5904 requires a fishing license of all persons who are nonresidents of the State of Mississippi. See sec. 5870, as amended by Miss.Laws 1962, ch. 189 (defining nonresidents). The only exemptions from the act are minors under fourteen years of age, and persons owning the record title to the property. Heard does not fall within either of these categories. Section 5904 is not ambiguous. It requires fishing licenses of 'all persons who are non-residents of the state of Mississippi,' except the two types of persons exempted. The legislative intent must control. There are no other exceptions from the statute, nor is there any terminology which would warrant considering any other exceptions.

Appellee argues that one fishing on a privately-owned lake, with the consent of the owner, is exempted from section 5904. The statute does not indicate such an exemption, and the court cannot amend it by judicial construction.

Prior to 1932 the legislature vested county boards of supervisors with licensing and supervisory powers for fishing and hunting in counties. Miss.Code 1930, secs. 4759, 4761, 4762. In 1932 the state took over these functions, and created the State Game and Fish Commission. Miss.Laws 1932, ch. 123. Subsequent legislation on the conservation of wildlife in this state has increased and powers and duties of the Commission, and manifests a legislative intent to regulate and protect the fish and game of this commonwealth in the public interest. Section 5904 is a particular, unambiguous expression of that intent, concerning the requirement of fishing licenses from nonresidents of the state. No exemption is made for those fishing in privately owned, land-locked lakes, other than as to owners, and defined minors.

The legislature has evidenced the same intent to require licenses for privately owned and operated shooting preserves. Chapter 182, Mississippi Laws 1962, is a detailed statutory regulation of privately owned shooting preserves. Section 11 requires state hunting licenses of all persons hunting on shooting preserves. It indicates further a legislative determination that its licensing power should apply equally to those hunting and fishing on privately as well as publicly owned lands.

Code section 5900 makes it unlawful to take game fish in any manner other than by hook and line, or dip-net, provided that 'in private ponds * * * which go dry in summer and cut off from the regular streams, dip nets may be used * * *' Section 5903 makes it unlawful to sell any game fish, but the commission 'may issue a permit to the owner of a private pond to sell fish ground or cultivated by such owner under such regulations as the Commission may deem wise.' In both instances the statutes regulate certain types of operations in privately owned ponds.

Appellee argues that an exemption from commission regulation of stream and water pollution of privately owned lakes is applicable also to the licensing statute, section 5904. The Stream and Water Pollution Act was first passed by Mississippi Laws 1942, chapter 252. It was repealed, and a new, broader statute went into effect in chapter 381, Mississippi Laws 1946. Miss.Code 1942, Rec., secs. 5929-01 to 5929-17. That act, in section 11, provides, 'Nothing contained in this act shall be construed' or have the effect of giving the commission jurisdiction of wholly landlocked and privately owned lakes. The exemption is from commission jurisdiction over stream and water pollution of the named types of waters. This is particular legislation on water pollution, and has no reference to other licensing powers of the commission, or to section 5904.

The present issue is concerned with the application of a specific, unambiguous licensing statute. It does not regulate the owner of the property. It simply requires that all other persons who are nonresidents must have a fishing license before they may fish in this state. Harsh, the owner of the lake, may continue to operate his business as before, but section 5904 requires that nonresidents who fish in it must have licenses.

II.

Appellee's argument for an exemption as to his type of lake has no basis in the terms of the statute. Nor is there any reason for implying one. An exception cannot be created by construction, when none is necessary to effectuate the legislative intention. Ordinarily, an exception must appear plainly from the express words or necessary intendment of the statute. Where no exception in positive words is made, the presumption is the legislature intended to make none. In effect, we are asked to create an exception to the statute, which we decline to do. 50 Am.Jur., Statutes, sec. 432. Moreover, although criminal and other penal statutes are generally said to be strictly construed in favor of the defendant, the courts are not authorized to interpret them so as to emasculate their effect. Where the legislative language is plain and unambiguous, and conveys a clear and definite meaning, as we think section 5904 does, there is no occasion for resorting to rules of statutory interpretation. 50 Am.Jur., Statutes, sec. 410.

Cases from several other jurisdictions apparently reach a contrary conclusion by implying an exemption to the licensing statute, of persons fishing on privately owned, land-locked lakes. See Anno., 15 A.L.R. 754 (1951); Ohio Water Service Co. v. Ressler, 173 Ohio St. 33, 180 N.E.2d 2 (1962). We do not think their rationale is consistent with the terms of the Mississippi statute and the judicial interpretation of enacted legislation. To imply the exemption asserted by appellee, without statutory indication of that intent, would be inconsistent with the judicial function in applying a statute.

The Mississippi cases do not indicate a contrary result. Ex parte Fritz, 86 Miss. 210, 38 So. 722 (1905), was a habeas corpus...